England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE GARLAND: This appeal by way of case stated is, perhaps unusually, on the application of the National Towing and Trailer Association Limited as "a party aggrieved by the conviction" pursuant to s 111(1) of the Magistrates' Courts Act 1980.

2. The actual conviction was recorded against Bernard Peter Cowley on 14 February this year at Winchester for using a vehicle, a Daihatsu four-track 4 x 4, to which s 97 of the Transport Act 1968 applied, when there was not in the vehicle recording equipment (a tachometer) which had been installed in accordance with the Community Recording Equipment Regulation contrary to s 97(1)(a)(i) of the 1968 Act.

3. A company called Lindsays Limited were similarly charged after the information had been amended. They too were convicted, but it is now conceded that this conviction cannot be sustained because on the facts found the company did not use the vehicle. This is a matter to which I shall revert briefly.

4. The facts found were that on 23 May of last year Mr Cowley was driving the Daihatsu 4 x 4, towing an Avon Field trailer on which was a new Hyundai car which Mr Cowley was, in the course of his business as a self-employed transport contractor, delivering to Lindsays. Lindsays were Hyundai dealers. The trailer weighed some 2,600 kg. It was connected to the Daihatsu by a normal hitch. The Daihatsu weighed 2,550 kg, so the combined weight of the towing vehicle and trailer was 5,150 kg. The Daihatsu was not fitted with a tachograph.

5. Turning to the law, s 97(1) of the 1968 Transport Act provides that:

6. Article 3 para. 1 of the Council Regulation (EEC) No 3821/85 provides:

7. The relevant exception is Article 4, in that the regulation shall not apply "to vehicles used for the carriage of goods where the maximum permissible weight of the vehicle, including any trailer or semi-trailer, does not exceed 3,5 tonnes..."

8. I observe at this stage that Article 1 of that regulation contains definitions of "vehicle", "motor vehicle", "tractor", "trailer" and "semi-trailer" which may, as we shall see, have caused some confusion amongst the justices.

9. Vehicles which are required to have recording equipment installed are defined by s 95(2) of the 1968 Act, which provides as follows:

10. Of course that does not apply to this case. Then:

11. The decision of the justices appears at paragraph 6 of the case, and is to this effect:

12. The prosecution had not called any evidence about the weight of the trailer being superimposed or transferred to the towing vehicle (the Daihatsu). The defendants had. That is referred to in paragraph 3(c) of the Case as follows:

13. The justices decided, as has already been said, that the Daihatsu must have been a motor vehicle so constructed that a trailer might, by partial superimposition, be attached to the vehicle in such a manner as to cause a substantial part of the weight of the trailer to be borne by the vehicle. Of course it would have had to have been borne by the tow bar.

14. Today the applicants have put before us sketches of a standard articulated truck; a truck and turntable self-steering trailer; a truck and articulated trailer with converter dolly; and a light vehicle towing a Group O2 trailer, which is what this case is concerned with. It appears to the Court, although these matters must always be founded on findings of fact, that the superimposition passage in (b)(i) of s 95(2) is dealing with an articulated truck with a fifth wheel.

15. It is now conceded by the respondent that the question posed by the justices, which is as follows:

16. That findings of fact are essential is supported by the case of Director Public Prosecutions v Free's Land Drainage Company Limited [1990] RTR 37 which concerned a tractor unit and a dolly interposed between the tractor and the trailer where a substantial proportion of the weight of the trailer was apparently transferred to the dolly but not to the tractor unit. The justices had made no finding of fact whether and, if so, how much of the trailer weight was borne by the tractor unit, and an appeal against the dismissal of the information was not allowed by this Court on the basis that there was simply no finding of fact and the Court declined to speculate.

17. We were invited by the respondent to give some indication as to how to approach the word "substantial". This invitation we declined as it is essentially a matter of evidence in each individual case.

18. The respondent, as well as conceding the first point in the case, and the one on which the justices determined it, endeavoured to argue that attaching the trailer turned the Daihatsu into a motor vehicle adapted to carry goods within s 95(2)(b)(ii), because it was argued that "carry" in this context must include carriage by towing and should not be given the restricted meaning contended for by the applicants, who submit that "carry" means "in or on the vehicle itself". That argument, they submit, is supported by the words "other than the effects of passengers" which appear in the statute itself. The necessary adaptation would of course be the fitting of the tow bar.

19. In my judgment, this is an untenable argument. Some consideration of a similar point was made in the case of Taylor v. Mead [1961] 1 WLR 435, which concerned the installation by a commercial traveller of rails in the back of a car on which dresses and other clothing could be hung so that he could transport them in the course of his business. The installation of the rails did not interfere with the use of the car by passengers in the ordinary way. It was contended that the vehicle had been adapted for the carriage of goods and therefore attracted a higher vehicle excise licence rate. I quote very briefly in the judgment of the Lord Parker CJ at page 438 where he says:

20. Some support for that approach appears in a decision of this Court in The Vehicle Inspectorate v Richard Read Transport Limited given on 25th November of last year. I do not think it necessary to refer in detail to that case, but it has to be said that the respondent's argument must necessarily mean that the vehicle with no trailer attached would cease to be a goods vehicle, but once the trailer was attached, providing it was carrying goods, it became a goods vehicle.

21. The justices made no findings of fact to found this particular argument, and it is, so far as this Court is concerned, a matter of speculation. We have noted the absence of findings of fact to found the justices' decision under paragraph (b)(i), and also the absence of any finding of fact as to whether or not the vehicle was constructed or adapted for the carriage of goods. We take the view that it is incumbent on prosecuting authorities, before launching a prosecution of this nature, to ensure that they have addressed their minds to the correct section of the Act and indeed to the correct regulation, and then, if necessary, to call expert or other evidence, in this case specifically not only of the bare weight but of the extent of the transfer of any weight, if the prosecution is being launched under paragraph (b)(i).

22. We also note, from the way in which the case is constructed, that in paragraph 5 the justices say:

23. That is simply a statement of what had to be decided.

24. However, it would appear that some confusion must have crept in as between the two EEC regulations and the relevant provisions of the Act. As has been suggested on behalf of the respondents, there is a possible inference that the justices drew on the definitions to which reference has been made in Article 1(2) of 3820 rather than concentrating on the definition of "goods vehicle" in s 95(2)(b)(i) which contains the superimposition provision.

25. So far as Lindsays are concerned, again it is conceded that the conviction cannot stand. Taking the matter very briefly, they were charged by amendment with using the vehicle and not with causing or permitting it to be used. There was a finding that Mr Cowley was an independent contractor. He owned the Daihatsu and he owned the trailer. Thus, on the authority of West Yorkshire Trading Standards Service v Lex Vehicle Leasing Limited [1996] RTR 70 at page 76E they could not be said to use the vehicle and, quoting briefly from that authority at the page and letter indicated:

26. That of course on the finding of fact was plainly not the case and therefore the conviction cannot stand.

27. LORD JUSTICE PILL: I agree and I express agreement with Mr Justice Garland's concern as to the confusion in the Magistrates' Court. That is illustrated by the fact that counsel for the respondents has had to concede that he is not able to seek to uphold the convictions upon the basis which they were found proved.

28. The law is somewhat complex and requires cross-referencing between United Kingdom statutes and Community regulations. It is incumbent on prosecuting authorities to consider the effect of the law and to present their case accordingly. In this case, the prosecution called no evidence at all on the point which was vital to the case as subsequently found to be proved by the justices. The prosecuting solicitor did refer the magistrates to the correct statutory provision, and the errors which occurred were not by reason of any failure of defence counsel to put the appropriate points to them on behalf of the defendants.

29. The matter did not end there, because the justices state in the case they have submitted to the Court that they were given advice by their legal adviser. There is, however, in the case as stated to the Court, no reasoning as to how they reached their conclusions upon the basis of the facts which they had found.

30. I too would answer the question posed for the opinion of this Court in the negative.

31. MR LAMMING: My Lords, I am grateful. It remains for the Court to consider what order should be made. I indicated to my Lords in the opening to the appeal that this is an unusual appeal because it is by a third party, and one has to look to see what the provision in the Act say. May I take your Lordships to a 28A of the Supreme Court Act, in the White Book vol 2, at page 1730, where my Lords will see the opening words:

32. If those words, "the proceedings", must be read as referring back to the proceedings in sub-section (5), really it does have to do with the proceedings in the lower court, and in my submission that paragraph is wide enough to encompass that, so that in my submission your Lordships have the appropriate powers and it is a matter of discretion as to whether to make the order in favour of Mr Cowley and Lindsays, and if so, whether it is a defendant's costs order or alternatively an order against the prosecution. In respect of that, I would of course refer to the observations that both my Lords have made concerning the duty on the prosecutor, and to look at the case that the prosecutor was putting to the court.

33. But so far as Lindsays are concerned, there is a further point, that the prosecution clearly did not think about the case, with respect, on the question of using the vehicle. Your Lordships have seen how the original information was laid on that matter, and so far as that was concerned, the evidence that was called before the justices included an interview with Mr Harry Baines, the sales director of the company, and in response to the allegation that the vehicle had been used without a tachograph, the officer who is conducting the interview put that to him and his answer was: "Basically we have a need to move vehicles about the country on ... and because of ever-increasing staff costs we do not have our own drivers, and rely on the service of outside companies. I would have thought that anyone setting setting up in the business of transporting vehicles would be fully aware of the regulations." The officer said to that: "So you have no control over the driver, who is self-employed, save to tell him where to go and what to do?" Answer: "That is right."

34. So the interview itself highlighted for the prosecution, if they considered it, the very point which is now conceded by my learned friend. What we submit in those circumstances is that the costs should be ... costs ... in the lower court.

35. LORD JUSTICE PILL: Yes. Can you have costs out of central

36. MR LAMMING: My Lord, I am not sure we can, because costs out of central funds are in favour of the accused and we are not the accused. I think we fall within the more general discretion in s 28, this being a matter where we are the only party that has incurred costs in this Court. If Lindsays had chosen to appeal, which they would have been entitled to do, they would have been entitled to their costs here in the normal way. But in this appeal ...

37. LORD JUSTICE PILL: Yes, thank you. Mr. Fuller?

38. MR FULLER: My Lords, I cannot oppose any order you would make in favour of the original defendants getting their costs out of central funds. May I just observe this. The appellants today are not the original defendants in the case. If they had been, then the Court would have had power to order the costs of the successful appeal to be paid out of central funds, and it would not fall on the respondent, who in effect is now, because it is a prosecution taken over by the appellant in this case, going to bear a burden that, if the normal course of appeals in these sorts of cases had taken place, it would not have had to bear.

39. It is again something that, on balance, could be seen to operate unfairly against the respondent, and I would ask you to give that what weight you could, and not award the appellant's costs against the respondent.

40. LORD JUSTICE PILL: Thank you. Anything in reply?

41. MR LAMMING: My Lord, only to say that the normal order ...

42. LORD JUSTICE PILL: We will retire.

43. LORD JUSTICE PILL: The convictions will be quashed and it follows that the penalties that follow them will be quashed. The defendants in the magistrates' court will have their costs out of central funds. On the appeal the appellants, the association, will have their costs against the respondents under s 28A of the Supreme Court Act.

44. Are there any other matters arising? We are grateful to counsel for their submissions.